Michael Dahlem v. City of Saco

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2024 ME 32
Docket: Yor-23-154
Argued: February 6, 2024
Decided: May 2, 2024

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

MICHAEL DAHLEM

v.

CITY OF SACO et al.

DOUGLAS, J.

[¶1] The City of Saco, Amarjit Singh Dhillon, and Ajinder Kaur

(collectively Appellants) appeal from the Superior Court’s (York County,

Mulhern, J.) grant of partial summary judgment to Michael Dahlem, who owns

property neighboring Dhillon and Kaur’s property and who challenged a

contract zone agreement that would have allowed development of Dhillon and

Kaur’s property in Saco. Dahlem cross appeals from the court’s dismissal of his

Rule 80B appeal and subsequent denial of his motion to reconsider that

dismissal, and from the court’s denial of summary judgment on two counts in

his complaint. We affirm in all respects and dismiss Dahlem’s cross-appeal as

moot.
2

I. BACKGROUND

[¶2] The following facts are drawn from a joint statement of material

facts and a stipulated record submitted to the court on cross-motions for

summary judgment.1 See Ross v. Acadian Seaplants, Ltd., 2019 ME 45, ¶ 3, 206

A.3d 283.

[¶3] This case involves a decade-long effort to obtain permission to build

a single-family residence on Oceanside Drive in the Saco neighborhood of

Kinney Shores. In 1980, J. George and Nancy Driscoll2 jointly acquired, by a

single deed, two adjacent lots, identified as Lots 201 and 202. There was a

single-family residence on Lot 201; Lot 202 was undeveloped. At the time, both

lots were “grandfathered” nonconforming uses that did not comply with the

City’s zoning ordinances. In 1986, George conveyed his interest in Lot 202 to

Nancy and Nancy conveyed her interest in Lot 201 to George.

[¶4] In 2009, the Driscolls applied for a permit to build a single-family

residence on Lot 202, then owned only by Nancy. The code enforcement officer

1 Although courts review Rule 80B appeals based on the administrative record, see M.R.
Civ. P. 80B(f), as we note below, Dahlem challenges a legislative, not adjudicatory, act, see infra
¶¶ 17-20. In this circumstance, a declaratory judgment action is a proper avenue for redress and
may proceed through cross-motions for summary judgment based on a stipulated record. See Ross v.
Acadian Seaplants, Ltd., 2019 ME 45, ¶¶ 6-7, 206 A.3d 283 (reviewing cross motions for summary
judgment on claims seeking, inter alia, declaratory relief, based on a stipulated record).
2 For the sake of clarity, we refer to the Driscolls individually as George and Nancy.
3

denied their application. The Saco Zoning Board of Appeals affirmed the denial,

and the Superior Court (York County, Brennan, J.) affirmed the Board’s decision.

The Driscolls appealed, and we affirmed the court’s holding in a memorandum

of decision, stating that Lot 202 “lost its grandfathered status as a buildable lot”

under the City’s zoning ordinances when it was held in common ownership

with Lot 201 and that the subsequent division of the parcels did not restore its

grandfathered status. Driscoll v. City of Saco, Mem-11-138 at 1 (Sept. 22, 2011).

We explained that “the Board’s denial of the request for a variance is final, and

absent a change in factual circumstances, the Driscolls are precluded from

applying for a variance for” Lot 202. Id. at 2 (citations omitted).

[¶5] The Driscolls continued to explore options that might allow them to

build a residence on Lot 202. In 2015, they applied for a contract zone

agreement that would “legislatively establish” their land “as two separate,

buildable lots.” See 30-A M.R.S. § 4352(8) (2024) (allowing municipal zoning

ordinances to include provisions for contract zoning); see also Saco, Me., Zoning

Ordinance § 1403-2 (2012) (authorizing contract zoning in Saco). The Saco

Planning Board held a public hearing to consider the request and

recommended that the Saco City Council deny the application. After holding its
4

own public hearing, the City Council agreed with the Board’s recommendation

and denied the application.

[¶6] The Driscolls applied again in 2017 to have their property rezoned

by contract. This time, the City Council reversed course and voted to approve

the application. The rezoning was codified in the “Contract Zone Agreement By

and Between J. George and Nancy S. Driscoll and the City of Saco, November 20,

2017,” which exempted Lots 201 and 202 from the zoning restrictions that had

prevented the Driscolls from building a house on Lot 202.

[¶7] The 2017 agreement required the Driscolls to seek the U.S.

Environmental Protection Agency’s (EPA) consent before connecting the new

house to the City’s sewer system.3 The 2017 agreement also contained two

deadlines:

Failure of the Applicants to secure site plan approval from
the Planning Board within one year of the approval of this Contract
by the Saco City Council shall render this Contract null and void. In
the event that permits or approvals are delayed due to
circumstances beyond the control of the Applicants, this one year
deadline may be extended by one year upon written request to the
City Council.

....

3 The Driscolls submitted a site plan following the approval of the 2017 agreement, which
indicated that they intended to use a septic system instead of connecting to the City’s sewer system.
5

Failure of the Applicants, or buyers of a second lot that is
created by virtue of this Agreement, to seek a single family dwelling
building permit as described in application materials for this
Contract Zone within two (2) years from the date of approval shall
render this approval and Contract null and void. This two year
deadline may be extended by one year upon written request to the
City Council.

Because the 2017 agreement’s effective date was November 20, 2017, the

Driscolls had to “secure site plan approval from the Planning Board” by

November 20, 2018, and “seek a single family dwelling building permit” by

November 20, 2019.

[¶8] The Driscolls secured site plan approval on October 16, 2018,

thereby meeting the November 20, 2018, deadline. The site plan approval was

valid for two years. However, the Driscolls did not obtain a building permit by

November 20, 2019, nor did they make a written request to extend that

deadline by another year. George passed away at some point following the

execution of the 2017 agreement, and there were significant delays in obtaining

from the Maine Department of Environmental Protection a permit to alter

coastal sand dunes, which was required before the Driscolls could apply for a

building permit for Lot 202. See 38 M.R.S. §§ 480-B(1), (8), 480-C(1)-(2)

(2024). Ultimately, the sand dune permit was issued on June 9, 2021.
6

[¶9] Nancy then requested additional time to seek a building permit. At

meetings on August 30 and September 7, 2021, the City Council took up and

then approved her request. Nancy and the City entered into an agreement

entitled “Amended Contract Zone Agreement by and Between J. George and

Nancy S. Driscoll and the City of Saco, Approved November 20, 2017, Amended

September 13, 2021.”4 The 2021 agreement provided, among other things, the

following:

Due to unforeseen delays in obtaining permits required to
construct the proposed residence, the original Agreement between
the Applicants and the City expired on November 20, 2019.

....

Saco City Council and the Applicant agreed to an extension of one
year from the date of the DEP issuance [of] the Sand Dune
Alteration Permit during the September 7, 2021 Council meeting.”

The 2021 agreement further provided that it would be “null and void” if Nancy

failed to “secure a single family dwelling building permit . . . by June 9, 2022”;

that this “deadline may not be extended”; and that Nancy was required to seek

EPA approval to connect to the City sewer and submit “[e]vidence of

4The underscoring appears in the 2021 agreement and indicates the text in that agreement that
did not appear in the 2017 agreement.
7

undertaking a good faith effort to obtain such approval” before applying for a

building permit.

[¶10] By this time, the site plan approval issued by the Saco Planning

Board in 2018 had lapsed, so Nancy applied for approval again. At a meeting

on October 19, 2021, the Planning Board voted to approve Nancy’s new site

plan.

[¶11] On November 17, 2021, Dahlem filed a six-count complaint against

the City and Nancy in Superior Court, appealing the City’s approval of the

2021 agreement pursuant to M.R. Civ. P. 80B (Count 6) and seeking a

declaration that the contract zone agreement was unlawful on various grounds

(Counts 1-5).5

[¶12] The court (York County, Mulhern, J.) subsequently dismissed the

Rule 80B appeal (Count 6) on the City’s motion. During the pendency of the

City’s motion, Nancy sold Lot 202 to Dhillon and Kaur, who were substituted as

defendants in the case. See M.R. Civ. P. 25(c). Dahlem subsequently moved for

5 Count 1 sought a declaration that our decision in Driscoll v. City of Saco, Mem-11-138 (Sept. 22,
2011), precluded the construction of a building on Lot 202. Count 2 sought a declaration that the
2017 agreement expired “at the latest, on November 21, 2019,” and could not thereafter be extended.
Count 3 sought a declaration that the 2021 agreement was unlawful under the City’s contract zoning
ordinance. Count 4 sought a declaration that the 2021 agreement was preempted by state law. And
Count 5 sought a declaration that the 2021 agreement was incompatible with the City’s
comprehensive plan.
8

summary judgment on the remaining counts and Appellants countered by filing

cross-motions for summary judgment.

[¶13] The court granted summary judgment to Appellants on Count 1,

determining that our prior decision did not preclude the City from using its

legislative authority to allow construction on Lot 202. The court granted

summary judgment to Dahlem on Counts 2, 3, and 4, declaring that the 2017

agreement

 “became null and void in 2019 and thereafter could not be amended or
extended” (Count 2);

 “is invalid and unlawful for noncompliance with the City’s contract
zoning ordinance” (Count 3); and

 “is inconsistent with Maine’s Mandatory Shore[land] Zoning statute and
therefore preempted and invalid” (Count 4).

The court denied summary judgment to all parties on Count 5 because it could

not “definitively say” whether the 2021 agreement was compatible with the

City’s comprehensive plan in effect in 2021.6 The court also denied Dahlem’s

motion to reconsider the court’s dismissal of Count 6, the Rule 80B appeal. See

M.R. Civ. P. 7(b)(5).

The parties later stipulated to the dismissal of Count 5, in order to create an appealable final
6

judgment. See Fournier v. Flats Indus., Inc., 2023 ME 40, ¶ 13, 298 A.3d 810.
9

[¶14] Appellants timely appealed. Their appeal raises three principal

issues. First, they contend that Dalhem’s Rule 80B appeal, which the court

dismissed for lack of standing, is the exclusive procedural remedy in this case

and the court therefore erred by entertaining Dahlem’s declaratory judgment

claims. Second, Appellants maintain that the court erred by determining that

the 2017 agreement had expired on November 20, 2019, and that it could not

be extended thereafter. Third, they assert that the court erred by declaring that

the 2021 agreement was unlawful under the City’s contract zoning ordinance

and that the 2021 agreement was preempted by state law.

[¶15] Dahlem cross-appealed. He challenges the court’s dismissal of his

Rule 80B appeal and its denial of summary judgment on his claims that

Appellants are precluded from building on Lot 202 and that the

2021 agreement is inconsistent with the City’s comprehensive plan.

II. DISCUSSION

A. Standard of Review

[¶16] “We review de novo the grant or denial of cross-motions for

summary judgment.” Osprey Landing, LLC v. First Am. Title Ins. Co., 2017 ME 46,

¶ 7, 157 A.3d 247. “Summary judgment is properly granted when there is no

genuine issue of material fact and the moving party is entitled to judgment as a
10

matter of law.” Id. (citing M.R. Civ. P. 56(c)). “Because the facts presented are

not in dispute, we review the summary judgment de novo for errors of law in

the court’s interpretation of the relevant legal concepts.”7 Ross, 2019 ME 45,

¶ 7, 206 A.3d 283.

B. Procedural Remedy

[¶17] Appellants contend that the City Council’s action in

September 2021 constituted a waiver of the deadlines in the 2017 agreement

and was therefore an adjudicatory act that may only be challenged in a Rule 80B

appeal. See Hathaway v. City of Portland, 2004 ME 47, ¶¶ 1, 6-7, 14-16, 845 A.2d

1168 (reviewing in a Rule 80B appeal the enforcement of a contract zone

agreement). Appellants maintain that the court properly dismissed Dahlem’s

Rule 80B claim as untimely and for lack of standing but erred by considering

Dahlem’s declaratory judgment claims.

[¶18] Dahlem counters—and we agree—that the City’s action in 2021

was not an adjudicatory act but rather was a legislative act that is properly

7 If, as here, the parties seek resolution of a dispute based on a stipulated record and do not intend

to proceed to trial on any disputed facts an alternative and perhaps more efficient approach may be
a motion for judgment on a stipulated record, rather than cross-motions for summary judgment. See
Rose v. Parsons, 2015 ME 73, ¶ 8, 118 A.3d 220 (“When presented with a stipulated record, a trial
court may—unlike on a motion for summary judgment—draw factual inferences from that evidence
and decide disputed inferences of material fact to reach a final result.”); Rufus Deering Co. v. Spike, No.
RE-05-124, 2006 WL 2959678, at *1 (Me. Super. Ct. July 25, 2006) (citing Boston Five Cents Sav. Bank
v. Sec’y of Dep’t of Hous. & Urb. Dev., 768 F.2d 5, 11-12 (1st Cir. 1985)).
11

reviewable in a declaratory judgment action. We have consistently stated that

zoning—including zoning via a contractual agreement—is a “legislative act”

that is reviewable in a declaratory judgment action. See Remmel v. City of

Portland, 2014 ME 114, ¶¶ 10 n.1, 12, 102 A.3d 1168 (“[A] declaratory

judgment, and not a Rule 80B appeal, is the proper procedure for challenging

[a municipality’s] zoning decision.”); Crispin v. Town of Scarborough, 1999 ME

112, ¶ 18, 736 A.2d 241 (explaining that contract zoning is a legislative act); F.S.

Plummer Co. v. Town of Cape Elizabeth, 612 A.2d 856, 858-59, 861 (Me. 1992)

(indicating that both the enactment and amendment of a zoning ordinance are

legislative acts); see also 14 M.R.S. § 5954 (2024) (providing that “[a]ny person

. . . whose rights, status, or other legal relations are affected by a . . . municipal

ordinance” may seek declaratory relief).

[¶19] Appellants’ characterization of the City’s 2021 action as a waiver

of the 2017 agreement’s deadlines relies on their argument that the

2017 agreement did not expire in 2019. As discussed below, this argument

lacks merit. See infra ¶¶ 21-31. However, even if we were to accept Appellants’

argument that the 2017 agreement did not expire in 2019, the City Council’s

action still constituted a legislative act reviewable in a declaratory judgment

action.
12

[¶20] In approving the 2021 agreement, the City Council did not just

waive enforcement of the 2017 agreement’s deadlines, it altered the terms of

the 2017 agreement by setting a new deadline and requiring Nancy to

demonstrate that she sought, in good faith, EPA approval for a sewer hookup.

These new provisions, like every other provision in the agreement, are

legislative enactments reviewable in a declaratory judgment action. See

Plummer, 612 A.2d at 861 (“Zoning is a legislative act, and the adoption of a

zoning amendment, like the enactment of the original zoning ordinance[,] is

also a legislative act.” (alterations, citation, and quotation marks omitted)). The

City Council’s approval of the 2021 agreement was a legislative act properly

reviewable in a declaratory judgment action, not a Rule 80B appeal, so the

timing and standing requirements of Rule 80B are immaterial. 8

C. The 2017 Agreement

[¶21] The 2017 agreement provided that the failure to “seek a single

family dwelling building permit” by November 20, 2019, would “render this

8 For the same reason, we dismiss as moot Dahlem’s cross appeal challenging the court’s dismissal

of his Rule 80B appeal and subsequent denial of his motion for reconsideration. See Mainers for Fair
Bear Hunting v. Dep’t of Inland Fisheries & Wildlife, 2016 ME 57, ¶ 5, 136 A.3d 714 (“An issue is moot
when there remains no real and substantial controversy, admitting of specific relief through a
judgment of conclusive character.” (quotation marks omitted)); see also Carroll F. Look Constr. Co. v.
Town of Beals, 2002 ME 128, ¶¶ 5-17, 802 A.2d 994 (dismissing Rule 80B appeal as moot while
addressing the merits of other claims brought in the same complaint).
13

approval and Contract null and void.” That deadline could be “extended by one

year upon written request to the City Council.” Appellants assert that, despite

this language and the uncontroverted evidence in the record indicating that the

Driscolls neither applied for a building permit by the initial deadline nor

requested to extend the one-year deadline, the 2017 agreement nonetheless

remained in effect. We disagree.

[¶22] While a contract zone agreement constitutes a “legislative act”

amending a municipality’s zoning laws, it is still a contract. We therefore apply

established rules of contract interpretation to ascertain the meaning of terms

contained in a contract zone agreement. Whether contract language is

ambiguous, meaning “reasonably susceptible to different interpretations,” is a

question of law that we review de novo. Richardson v. Winthrop Sch. Dep’t, 2009

ME 109, ¶ 9, 983 A.2d 400 (alteration and quotation marks omitted). “When a

contract is unambiguous, its construction is also a question of law,” and we

interpret the contract “according to the plain meaning of its language,” avoiding

“any interpretation that renders a provision meaningless.” Id. “If the contract

language is ambiguous, however, then the proper interpretation becomes a

question of fact for the factfinder.” InfoBridge, LLC v. Chimani, Inc., 2020 ME 41,

¶ 13, 228 A.3d 721 (quotation marks omitted).
14

1. “Seek” a Building Permit

[¶23] Dhillon and Kaur argue that the deadline only required the

Driscolls to “seek,” rather than “secure,” a building permit by November 20,

2019. They maintain that the Driscolls tolled the deadline because they hired

firms to complete preliminary design and survey work, applied for

DEP permits, and applied for site plan approval before that date. Dahlem

counters that these actions were insufficient to toll the deadline. We agree with

Dahlem.

[¶24] The 2017 agreement clearly required the Driscolls to at least

submit a building permit application by November 20, 2019. A person “seeks”

a permit when they ask the permitting entity to issue the permit. See Seek,

Webster’s II New College Dictionary (3d ed. 2008) (“To ask for: REQUEST.”);

Seek, New Oxford American Dictionary (3d ed. 2010) (“[To] ask for (something)

from someone.”); cf. Murray v. Town of Lincolnville, 462 A.2d 40, 41-44

(Me. 1983) (using “seek” and “apply” interchangeably to describe the act of

requesting permits from the Board of Environmental Protection and a local

planning board).

[¶25] Also, if we define “seek” to include steps taken to prepare to apply

for a permit, it is not clear what preparatory acts would be sufficient to toll the
15

deadline. For example, the very act of entering into the contract zone

agreement was a preparatory step toward securing a building permit, but was

clearly insufficient to toll the deadline.

[¶26] Finally, to the extent that “seek” is ambiguous, and we do not

believe it is, the stipulated record demonstrates clearly that the Driscolls did

not toll the deadline. If Nancy believed that she had tolled the deadline, there

would have been no reason for her to request an extension of the deadlines in

the 2017 agreement. And if the City believed that the deadline had been tolled,

it did not need to grant the requested extension. This mutual understanding is

explicit in the text of the 2021 agreement, which states that the 2017 agreement

“expired on November 20, 2019.”

[¶27] We therefore hold that the 2017 agreement required the Driscolls

to apply for a building permit before November 20, 2019, and that they failed

to do so.

2. “Null and Void”

[¶28] We next consider whether the deadline provision nullified the

2017 agreement, or merely rendered it voidable by the City. The City argues

that the 2017 agreement embraces a more lenient definition of the word “void,”
16

that is synonymous with “voidable.” The City also contends that it could waive

enforcement of the deadline provision. Neither argument is convincing.

[¶29] The 2017 agreement provides unequivocally that the Driscolls’

failure to seek a building permit by the final November 20, 2019, deadline

would “render this approval and Contract null and void.” Black’s Law

Dictionary defines “null” as “[h]aving no legal effect” and as synonymous with

“void.” Null, Black’s Law Dictionary (11th ed. 2019); see Void, Black’s Law

Dictionary (11th ed. 2019) (“Of no legal effect . . . .”). Furthermore,

The distinction between void and voidable is often of great practical
importance. Whenever technical accuracy is required, void can be
properly applied only to those provisions that are of no effect
whatsoever—those that are an absolute nullity.

Void, Black’s Law Dictionary (11th ed. 2019). While the word “void” may at

times be “used and construed as bearing the more liberal meaning of ‘voidable’”

id., its use here—coupled with the word “null” and read in context with the

language used in the 2017 agreement—leaves little room for doubt that the

stricter interpretation was intended.

[¶30] It is also significant that the deadline operated not only on the

2017 agreement itself but also on the City’s approval of the 2017 agreement.

By approving the 2017 agreement, the City was amending its zoning

ordinances. See Golder v. City of Saco, 2012 ME 76, ¶ 11, 45 A.3d 697 (reviewing
17

a contract zone agreement as a zoning amendment). By purporting to void that

approval after a certain period, the deadline operated as a sunset provision9

that limited the duration of that amendment. The City is therefore incorrect

when it argues that it could allow the 2017 agreement to remain in effect by

waiving enforcement of the deadline provision. Once the deadline passed, the

zoning amendment that allowed the City to enforce the 2017 agreement

expired. The City could not “waive” that amendment back into existence. Cf.

Burr v. Town of Rangeley, 549 A.2d 733, 734 (Me. 1988) (holding that town

planning board could not extend approval of subdivision plan rendered “null

and void” by town ordinance).

[¶31] For those reasons, we hold that the 2017 agreement became an

absolute nullity after November 20, 2019, and could not thereafter be amended.

D. The 2021 Agreement

[¶32] The court held that the 2021 agreement was unlawful because

(1) it was enacted in violation of the City’s contract zoning ordinance and (2) it

is preempted by 38 M.R.S. §§ 435-439 (2024), Maine’s “Mandatory Shoreland

Zoning” provisions.

“Sunset clauses are statutory provisions that require a law to expire at a predetermined time
9

unless it is renewed.” Kristen Underhill & Ian Ayres, Sunsets Are for Suckers: An Experimental Test of
Sunset Clauses, 59 Harv. J. on Legis. 101, 108 (2022).
18

[¶33] The principal argument Appellants advance on this issue is one we

have already rejected—that the 2021 agreement was merely an amendment of

the 2017 agreement and therefore not subject to the laws in effect in 2021.

Because we have determined that the 2017 agreement expired by its own

terms, the 2021 agreement constitutes a new, independent agreement which,

as of its effective date of September 7, 2021, attempts to enact a fresh

amendment to the City’s zoning ordinance. As explained below, we agree with

the Superior Court that the 2021 agreement is unlawful and void because it

violates the contract zoning ordinance and is preempted by the Mandatory

Shoreland Zoning provisions.

1. City Ordinance

[¶34] The City’s contract zoning ordinance, as amended in early 2021,

provides that applications for new contract zoning must first be considered by

the Planning Board, which must then forward its recommendation to the City

Council for final approval or disapproval. Saco, Me., Zoning Ordinance

§ 230-1705(C)-(G) (2021). If either body supports approval, it must make

certain findings.10 Id. § 230-1705(F)-(G). The ordinance also prohibits contract

10 The required findings are whether

(1) The rezoning is for land with an unusual nature or location;
19

zoning in the City’s “RP” (resource protection) zone. Id. § 230-1705(B); see id.

§ 230-303 (defining the “resource protection overlay district”).

[¶35] Here, the City Council executed the 2021 agreement, effecting a

zoning amendment, without consideration by or a recommendation from the

Planning Board. The Council also did not make any of the required findings.

Further, the parties stipulated that Lot 202 is located in the resource protection

zone. Because the City violated its contract zoning ordinance when it enacted

the 2021 agreement, the agreement is void.

2. Mandatory Shoreland Zoning Provisions

[¶36] The 2021 agreement is also preempted by the Mandatory

Shoreland Zoning provisions. “[S]tate statutes may preempt local ordinances

either expressly or implicitly.” Smith v. Town of Pittston, 2003 ME 46, ¶ 24, 820

A.2d 1200. The Mandatory Shoreland Zoning provisions expressly preempt

zoning in “areas . . . within 250 feet of the upland edge of a coastal wetland”11

(2) The rezoning is consistent with the Comprehensive Plan;

(3) The rezoning is consistent with, but not limited to, the existing uses and permitted
uses within the original zone; and

(4) The conditions proposed are sufficient to meet the intent of this section.

Saco, Me., Zoning Ordinance § 230-1705(F) (2021).
11 “Coastal wetlands” include “any . . . beach . . . that is subject to tidal action during the highest
tide level for the year” and “may include portions of coastal sand dunes.” 38 M.R.S. § 436-A(1)(2024).
20

that does not adhere to “minimum guidelines” enacted by the Board of

Environmental Protection (BEP). 38 M.R.S. §§ 435, 438-A(1)-(2) (2024). Under

the BEP guidelines, residential lots adjacent to tidal areas may be no less than

30,000 square feet per dwelling unit and have no less than 150 feet of shore

frontage per dwelling unit. 06-096 C.M.R. ch. 1000, § 15(A)(1)(a)(i) (effective

Jan. 26, 2015).

[¶37] The 2021 agreement purports to allow residential development on

a lot that does not conform to the BEP guidelines: Lot 202 is 5,450 square feet

and has 50 feet of shore frontage. The record also clearly indicates that Lot 202

is within 250 feet of a coastal wetland and adjacent to a tidal area. The

Mandatory Shoreland Zoning provisions therefore expressly preempt the 2021

agreement.12

Dahlem cross-appealed from the Superior Court’s denial of his motion for partial summary
12

judgment on Count 1, which had asserted that the City is precluded from allowing the construction
of a building on Lot 202. Because we affirm the Superior Court’s grant of summary judgment on
Counts 2, 3, and 4, it is unnecessary to reach Dahlem’s cross-appeal of Count 1, and we therefore
dismiss the cross-appeal as moot. See Mainers for Fair Bear Hunting, 2016 ME 57, ¶ 5, 136 A.3d 714.

Further, Dahlem argues that he was entitled to summary judgment on his claim in Count 5 that
the 2021 agreement was inconsistent with the City’s comprehensive plan. However, Dahlem
stipulated to dismissal of that claim prior to appealing, so it is not properly before us. See Jipson v.
Liberty Mut. Fire Ins. Co., 2007 ME 10, ¶ 6, 912 A.2d 1250 (“We generally do not review appeals from
a dismissal where the appealing party agreed to the dismissal.”).
21

III. CONCLUSION

[¶38] In conclusion, we hold that (1) Dahlem properly challenged the

2021 agreement by asserting claims for declaratory relief; (2) the

2017 agreement became null and void on November 20, 2019, and could not

thereafter be amended; (3) the 2021 agreement was invalid and unlawful

under the City’s contract zoning ordinance; and (4) the 2021 agreement was

preempted by the Mandatory Shoreland Zoning provisions. We also dismiss

Dahlem’s cross-appeal on Counts 1 and 6 as moot.

The entry is:

Judgment affirmed. Cross-appeal dismissed as
moot.

Timothy S. Murphy, Esq. (orally), Prescott Jamieson Murphy Law Group, LLC,
Saco, for appellant City of Saco

Jana Kenney, Esq. (orally), Bergen & Parkinson, LLC, Saco, and Luke Rossignol,
Esq., Bemis & Rossignol, LLC, Presque Isle, for appellants Amarjit Singh Dhillon
and Ajinder Kaur

Keith P. Richard, Esq. (orally), and Richard L. Qualey, Esq., Archipelago,
Portland, for cross-appellant Michael Dahlem

York County Superior Court docket number CV-2021-216
FOR CLERK REFERENCE ONLY